Citation NR: 9709588
Decision Date: 03/21/97 Archive Date: 03/31/97
DOCKET NO. 93-13 135 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Togus,
Maine
THE ISSUE
Entitlement to service connection for a back disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. A. Markey
INTRODUCTION
The veteran had active service from May 1953 to May 1955.
This appeal to the Board of Veterans' Appeals (Board) arises
from the May 1991 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Togus, Maine
which held that new and material evidence had not been
presented to reopen the veteran’s claim for service
connection for a back disorder. Notice of that decision and
of the veteran’s appellate rights was furnished by letter
dated on May 17, 1991. A notice of disagreement was received
on May 18, 1992, and has been considered timely in accordance
with 38 C.F.R. § 20.305. A statement of the case was issued
in November 1992. A personal hearing was held at the RO in
December 1992, the transcript of which may constitute a
timely substantive appeal regarding the veteran’s application
to reopen his claim for service connection for a back
disability.
The case was previously before the Board in March 1995 when
it was remanded for further evidentiary development. In a
June 1996 decision, the Board determined that new and
material evidence had been submitted sufficient to reopen the
claim for entitlement to service connection for a back
disorder. This claim was remanded for RO consideration on
the merits and for other development. As such, the issue in
appellate status is as listed above.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative contend, in substance,
that the veteran has a back disorder that was incurred while
he was on active military service in Korea. It is asserted
that the veteran injured his back while performing heavy
construction work, including lifting beams and gravestones.
They contend that the some of the symptoms thought to be
related to the veteran's left inguinal hernia in 1954 were
actually symptoms of a back injury or disability.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the veteran’s claim for entitlement to
service connection for a back disorder.
FINDING OF FACT
The evidence does not demonstrate that the veteran had a back
disorder or that he injured his back in service, and there is
no medical evidence or opinion of record, other than
speculation, that indicates a causal or etiological
relationship between his back disorder with his period of
active service.
CONCLUSION OF LAW
A back disorder was not incurred as a result of the veteran's
military service. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West
1991); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (l996).
REASONS AND BASES FOR FINDING AND CONCLUSION
Initially, the Board finds that the veteran has submitted
evidence that is sufficient to justify a belief that his
claim for entitlement to service connection for a back
disorder is well grounded. 38 U.S.C.A. § 5107(a) (West 1991)
and Murphy v Derwinski, 1 Vet.App. 78 (1990).
The Board is satisfied that all relevant facts regarding the
veteran’s claim for entitlement to service connection for a
back disorder have been properly developed to the extent
indicated by law and that no further assistance to the
veteran is required to comply with the duty to assist
mandated by 38 U.S.C.A. § 5107(a) (West 1991). In this
regard, the Board notes that a VA orthopedic examination was
accomplished pursuant to the June 1996 Board remand, and VA
has previously requested and received additional records from
National Personnel Records Center in St. Louis, Missouri
(NPRC).
In order to establish service connection for a disability,
the evidence must show a current disability that resulted
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131, 38 C.F.R. § 3.303
(1995), Allen v. Brown, 7 Vet.App 439 (1995). The Board
points out that arthritis of the spine will be presumed to
have been incurred in service if it had become manifest to a
degree of ten percent or more within one year of the
veteran’s separation from service. 38 U.S.C.A. §§ 1101,
1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1996).
The Board notes that the veteran does have a current
disability as indicated by the diagnoses of status post
laminectomy and disc excision, L4/5 on the left and status
post excision of the cervical disc at C4/5 contained in the
report of an August 1996 VA orthopedic examination.
The veteran and his representative contend that the veteran’s
back disorder resulted from the his service during the Korean
conflict. In a statement received in August 1988, the
veteran related that while stationed in Korea, he engaged in
heavy construction and lifted gravestones, and that he has
had back problems since then. Similar contentions were made
by the veteran during the December 1992 RO hearing. As
correctly pointed out in the June 1996 Board remand, the
veteran’s service medical records and sick reports are devoid
of complaints, findings, or diagnoses referable to a back
disorder.
Of record is a December 1990 lay statement by a service
comrade who recalled that when the veteran underwent hernia
surgery in service he seemed to think that he had an
undiagnosed back problem. During the December 1992 RO
hearing, the veteran testified that in April 1954 he injured
himself lifting beams and gravestones. He testified to his
belief that his injury during service involved his back
although he reportedly described pain in the buttock, knee,
and testicle to the doctor at the time. Similar statements
and history have been given by the veteran during private and
VA examinations, as noted in the reports of record.
Received at the December 1992 RO hearing was another comrade
statement which related that the veteran complained of back
pain during service and wondered if the hernia was his main
problem. This friend stated that the veteran had continually
complained of back symptoms since service. In another lay
statement received at the hearing, a long time friend of the
veteran’s attests to the veteran’s back pain following
discharge despite good health prior to service. While all of
these statements, including the veteran's testimony, are
credible, the Board notes that they are not competent,
without supporting medical evidence, to demonstrate that the
veteran had a back disorder in service or that he currently
has a back disorder as a result of service, as such
assertions require medical knowledge. Espiritu v. Derwinski,
2 Vet.App. 492 (1992).
The veteran further indicated during the RO hearing that his
back was not bothering him at the time of his discharge
examination, and testified that shortly after his discharge,
he sought treatment for the back pain experienced during
service from Dr. Cushman. The veteran asserted that he
continued to suffer from the same back disorder experienced
in service. Current symptoms included stiffness, and reduced
range of motion, as well as pain which he treated with
Percodan. Also received at hearing was a statement from Paul
D. Cushman, D. O., dated in December 1992, who attested to
his treatment of the veteran in June and July 1955 for a low
back disorder which the veteran reportedly believed to result
from his military service. The Board notes that Dr. Cushman
did not offer an opinion with respect to the etiology of this
low back disorder, nor is it demonstrated that the veteran
suffered from arthritis of the spine at that time.
Other evidence of record included private medical records
reflecting back symptoms and treatment from 1968 through
1980. None of these records, however, note that the
veteran's back disorder had its onset in service. One of
these records - dated in December 1969, and received from
Carl R. Griffin, Jr., M.D. - indicates that the veteran was
treated for coccygodynia of recent onset. The examiner noted
his opinion that the cause was probably trauma to the low
back, although no trauma was reported by the veteran.
Other records from Dr. Griffin, dated in June to July 1975,
indicate that the veteran was admitted to St. Andrews
hospital and treated with traction for persistent low back
pain of three months duration, with radiation into both
buttocks and legs with sciatic distribution. The examiner's
notes indicate that the veteran had a history of intermittent
low back pain and had received considerable osteopathic
massage for back problems over the previous twenty years.
The diagnosis was herniated nucleus pulposus, at the L4-L5
level. Another record from Dr. Griffin, dated in December
1975, noted an impression of possible varicocele, left
inguinal region and degenerative spondylosis by history
currently in remission. However, there is no indication that
the diagnoses with regard to the veteran’s back were related
to his active military service.
Another record from St. Andrews indicates that in February
1980 the veteran was hospitalized for complaints including
severe low back pain with left sciatica. Diagnoses included
probable ruptured nucleus pulposus with left sciatica and
moderately severe anxiety. In March 1980 he underwent
surgery described as left semi, hemi laminectomy with a very
markedly protruded disc found at the L4 to L5 level. A
February 1980 record from Carl A. Brinkman, M.D. notes a
history of low back pain after lifting a beam in service.
This appears to have been a history given by the veteran and
does not constitute competent evidence to the effect that he
has a back disorder as a result of service. Espiritu.
During an April 1991 VA examination the veteran maintained
that his physical problem was misdiagnosed in service. The
VA examiner noted his own opinion that the veteran may be
correct inasmuch as onset of pain reportedly occurred while
lifting gravestones and continued after hernia surgery. The
examiner opined that it could be that the veteran had two
problems, or one was misdiagnosed or missed, noting that
lifting gravestones could cause either herniated disc or
inguinal hernia.
A September 1992 statement by Dr. Griffin, also submitted at
the December 1992 hearing, indicated his view that the
veteran may have experienced back problems in service
simultaneously with hernia symptoms, inasmuch as disc pain
radiating into the genitals would feel about the same as pain
from a hernia, and the veteran felt that the pain relieved by
disc surgery was the same pain he had during and since
service.
Pursuant to the June 1996 Board remand, a VA orthopedic
examination was accomplished in August 1996, the report of
which has been associated with the record. As noted above,
this report notes diagnoses of status post laminectomy and
disc excision, L4/5 on the left and status post excision of
the cervical disc at C4/5. The examiner noted that
The [veteran's] contention that the pain
related to the left inguinal hernia in
1954 was actually pain caused by a
“pinched nerve in the low back” is not
born [sic] out by the [veteran's]
subsequent history, nor by the evaluation
of the neurosurgeon on 12/22/75. It was
thought then that the problem was related
to a varicocele. An L-4/5 lumbar disk
does not produce sensory changes or pain
in the groin or testicle.
An addendum added by the examiner notes that “the changes
seen on CT scan developed during civilian life after
discharge from the service.”
Since it has not been demonstrated that the veteran incurred
a back disorder in service, or that he has or had arthritis
of the spine within one year of his separation from service,
service connection for a back disorder is not established.
As noted above, any assertions made by the veteran that his
back disorder originated in service, are not competent, as
such assertions require medical knowledge. Espiritu. In this
regard, there is no medical evidence, other than speculation,
that the veteran’s back disorder is related to his active
military service. On the other hand, there is competent
medical evidence, in the form of the report of the recent VA
orthopedic examination, noted above, that this disability is
not at all related to his service.
The Board points out that when after consideration of all
evidence and material of record, there is an approximate
balance of positive and negative evidence regarding the
merits of an issue material to the determination of the
matter, the benefit of the doubt in resolving such matter
shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West
1991). However, in light of the above, the Board finds that
the preponderance of the evidence is against the veteran's
claim for entitlement to service connection for a back
disorder. Therefore, the resolution of doubt is not
necessary, and the claim is denied.
ORDER
Entitlement to service connection for a back disorder is
denied.
ROBERT A. LEAF
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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